OCTOBER 2015 AAntenna TM A N U P D A T E O N C O M M U N I C A T I O N S L A W & I S S U E S Rules Adopted for Contest Rules Modifying Satellite Go Online

TV Markets The FCC has amended its rules governing contests conducted by the licensees of broadcast stations. The FCC has taken steps to implement provisions of the According to the Report and Order in Docket 14-226, Satellite Television Extension and Localism Act broadcasters will now have the option to satisfy their Rauthorization Act of 2014 (“STELAR”) by establishing new obligations to disclose contest rules by posting written procedures for modifying satellite television markets in a information on a publicly accessible Internet website Report and Order in Docket 15-71. Initially, the Commission rather than by broadcasting them on the air. This pro - relies on the Nielsen ratings service for geographic defini - ceeding resulted from a Petition for Rulemaking filed tions of the 210 television markets in the country. However, by station group owner Entercom Communications in it may be necessary or desirable to modify the Nielsen mar - January, 2012. kets from time to time. The Commission has had rules for The Commission said that this change is consis - such procedures for cable television markets. These new tent with the contemporary practices of most satellite procedures parallel those already in use to modify Americans in using the Internet to search for and cable markets for television stations, but at the same time obtain information. Prior to this rule change, stations address conditions unique to the satellite context. The were required to disclose all of the material terms of Commission expanded Section 76.59 of its regulations – contest rules on the air beginning when the audience where the cable market modification rules are found—so as was first informed about how to participate in the con - to add provisions for satellite markets. test and continuing periodically thereafter until the These market definitions govern carriage rights and contest ended. The on-air option is still available for responsibilities as between the local television station and the stations that decide to use it instead of the Internet. cable or satellite system. While there is no blanket must-carry The Commission’s contest rule is found in Section continued on page 3 Incomplete License continued on page 2 Applications, Temporary IN THIS ISSUE

Facilities Nixed Autodialer Waiver...... 2

The FCC has issued a Memorandum Opinion and Order Deadlines To Watch...... 4-5 affirming Media Bureau decisions finding that five FM con - Wireless Mics...... 6 struction permits in Texas and New Mexico expired and were forfeited because the permittees failed to timely submit com - PROs and Partial Licenses...... ,...... 8 plete and forthright license applications. Specifically, the per - mittees failed to comply with special operating conditions in For more information about or help with any of the permits related to directional antenna installations and radiofrequency exposure measurements. They also failed to the items reported in ANTENNA , please contact: establish main studios. These permits were formerly known under the call signs KNOS, Albany, Texas; KANM, Skyline-Ganipa, New Mexico; KKUL-FM, Trinity, Texas; all held by Tanglo, LLC; and KAHA, 1200 Seventeenth St. NW Olney, Texas; and KXME, Wellington, Texas, held by South , DC 20036 Texas FM Investments, LLC. Tel: 202.663.8184 Principals of the two companies are related family members. Fax: 202.663.8007 continued on page 7 E-mail: [email protected] NAB Seeks Waiver of Autodialer Rule

The FCC has released a Public Notice requesting com - such consent as a condition of purchasing any property, ment on petitions by several parties, including the National goods, or services. The Commission recently granted Association of Broadcasters (“NAB”), requesting retroactive requests for temporary retroactive waivers of the rules waivers of Section 64.1200(a)(2) of the Commission’s rules adopted in 2012, especially pertaining to telemarketing calls concerning “robocalls.” The rule requires a party using an (including text messages) sent to wireless mobile phone automated telephone dialing system or an artificial or pre - numbers. In the waiver order, the Commission concluded recorded voice for telemarketing to obtain prior express that there was evidence of confusion on the part of the peti - written consent from the recipient. tioners about whether the consumer consents they had In 2012, the Commission strengthened its rules imple - obtained prior to the adoption of the rule amendments were menting the Telephone Consumer Protection Act governing sufficient to comply with the rules going forward concern - telemarketing. Under those rules, “prior express written ing mobile phones. In view of that confusion, the consent” was defined as including a clear and conspicuous Commission determined it would be reasonable to recog - disclosure that the person signing the agreement author - nize a limited period of time within which the petitioners ized the other party to deliver telemarketing calls using an could obtain the express written consent required by the automatic telephone dialing system or an artificial or prere - recently effective rule. Consequently, the agency granted corded voice and that the person is not required to provide continued on page 8 Contest Rules Go Online continued from page 1 73.1216 of its regulations. It states in part: disruptive because most such addresses are too long to grasp in a quick aural announcement. Instead, stations can identi - A licensee that broadcasts or advertises information fy the website through simple instructions or natural lan - about a contest it conducts shall fully and accurately guage (such as “kwyz.com”) so that the typical consumer disclose the material terms of the contest, and shall can easily find the website. The station must establish a link conduct the contest substantially as announced or or a tab on the home page of the site that leads directly to the advertised. No contest description shall be false, page where the rules can be found. The online disclosure misleading or deceptive with respect to any materi - must remain in place for 30 days after the conclusion of the al term. contest, i.e., after the winner(s) has been announced and . . . . informed. During that post-contest period, the material should be labeled to clarify that the contest has concluded Material terms include those factors which define and to state the date on which the winner was named. the operation of the contest and which affect partici - pation therein. Although the material terms may The rule will continue to prohibit false, misleading or deceptive contest descriptions, and to require that broad - vary widely depending on the exact nature of the casters conduct their contests substantially as announced. In contest, they will generally include: how to enter or the unlikely event that the terms of the contest are changed participate; eligibility restrictions; entry deadline while the event is in progress, the rules posted on the web - dates; whether prizes can be won; when prizes can site must, of course, be updated. Further, the station must be won; the extent, nature and value of prizes; basis announce on the air that the rules have changed and direct for valuation of prizes; time and means of selection the audience to the website where those changes can be of winners; and/or tie-breaking procedures. reviewed. The Commission emphasized that a broadcaster cannot change the terms of a contest in a way that unfairly or deceptively alters the operation of the contest or the nature To be relieved of the obligation to disclose material terms or value of the prize, or materially disadvantages existing of a contest on the air, a broadcaster must post those terms in contestants. Such changes will be deemed to render prior writing on a website that is available to the public 24/7, free descriptions false or misleading, and therefore in violation of and without a registration requirement. The station can use the rule. its own website, or if does not have one, it can use any other site meeting the standards for public accessibility. The FCC’s contest rule does not apply to licensee-con - ducted contests that are not broadcast or advertised to the To direct the audience to the location where the contest general public or to a substantial segment of the public; to rules are available, the station must periodically announce contests in which the general public is not requested or per - on the air the address of the website where they have been mitted to participate; to the commercial advertisement of posted. Although the Commission had originally proposed contests conducted by non-licensees; or to contests conduct - that stations should announce the complete website address ed by a non-broadcast division of the licensee, or by a non- as it would appear in a browser (such as “http-colon-back - broadcast company related to the licensee. slash, etc”), it concluded that this might be ineffective and

2 Rules Adopted for Modifying Satellite TV Markets continued from page 1 rule for satellites, there is the “carry one, carry all” rule. If a the evidence presented by the petitioner. satellite carrier chooses to carry one station in a market, all A proponent of a satellite market modification must file of the other stations in that market have must-carry rights a petition for Special Relief under Section 76.7 of the against the satellite carrier. Commission’s rules. The evidentiary requirements for such An issue especially addressed by STELAR is that of the a petition are similar to, but not precisely the same as those so-called “orphan” counties. These are counties in televison in a cable market modification proceeding. A petitioner markets that straddle state lines and create circumstances seeking the in-state enhancement factor must claim it and where communities may not have local in-market carriage of demonstrate it in the petition. In fact, all petitions seeking a television signals originating in their own state. Congress satellite market modification must include a statement as to and the Commission are concerned that communities in whether or not the relevant station and community are in these counties may suffer from a deficit of coverage of issues the same state. and events of particular importance to their state. Otherwise, evidence required for a satellite market Accordingly, an important criteria in satellite market modifi - modification petition is similar to that required for a cable cations is the question of whether there is an in-state station market modification petition, including: in the existing market for the community that is the subject of (1) A map or maps illustrating the relevant community the modification. locations and geographic features, station transmitter sites, For purposes of satellite carriage, a “satellite communi - satellite carrier local receive facility locations, terrain features ty” is a county. It is a county that is added to or deleted that would affect station reception, mileage between the com - from a market. Commercial television stations, satellite car - munity and the TV station transmitter site, transportation riers and county governments all have standing to propose routes and any other evidence contributing the scope of the or oppose modifications. These rules do not pertain to non - market. commercial stations. (2) Noise-limited service contour maps (for full power In the course of a satellite market modification, the stations) or protected contour maps (for Class A and low FCC is mandated by STELAR to afford particular attention power stations) delineating the station’s technical service to the value of localism by taking into account the follow - area and showing the location of the satellite carrier’s local ing factors: receive facilities and communities in relation to the sta - (1) whether the station, or other stations located in the tion’s service area. same area – (a) have been historically carried on the cable (3) Available data on shopping and labor patterns in system or systems within such community (note however the local market. that cable market modifications will not automatically (4) Television station programming information apply in the satellite context, nor will prior cable market derived from station logs or the local edition of the televi - decisions be afforded a presumption); and (b) have been sion guide. historically carried on the satellite carrier or carriers serv - ing such community. (5) Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such (2) whether the station provides coverage or other local as television guide listings. service to such community. (6) Published audience data for the station showing its (3) whether modifying the local market of the television average all day audience for both MVPD and non-MVPD station would promote consumers’ access to television sta - households. tion broadcast signals that originate in their state of residence. STELAR provided that even where a satellite market (4) whether any other television station that is eligible to modification was found to be warranted, the satellite carri - be carried by a satellite carrier in such community under er would be not be required to carry the relevant station these STELAR provisions provides news coverage of issues into the relevant community (i.e., the relevant county), if it of concern to such community, or provides carriage or cover - was not technically and economically feasible to do so. The age of sporting or other events of interest to the community. Commission concluded that it is per se not technically and (5) evidence of viewing patterns in households that economically feasible for a satellite carrier to provide a sig - subscribe and do not subscribe to the services offered by nal to a new community that is outside of the spot beam on multichannel video programming distributors within the which that station is currently carried. The satellite carrier areas served by such distributors in such community. has the burden to demonstrate infeasibility. It can show The new factor in this list that differs from considera - that spot beam coverage is infeasible by furnishing a tions for cable market modifications is the third item con - detailed technical certification under the penalty of perjury, cerning in-state signals. While this factor is a significant describing the satellite facilities that it has in operation at issue underlying these new rules, the Commission said that that time. Documentation supporting such a certification it will not make modification decisions exclusively on the must be available if the Commission requests it. If a carrier basis of this factor. Rather, this element will serve as an continued on page 6 enhancement, the specific weight of which will depend on 3 DEADLINES TO WATCH

License Renewal, FCC Reports & Public Inspection Files

Oct. 1, 2015 Deadline to place EEO Public File Dec. 1, 2015 Deadline to place EEO Public File Report in public inspection file and on Report in public inspection file and on station’s Internet website for all nonex - station’s Internet website for all nonex - empt radio and television stations in empt radio and television stations in Alaska, American Samoa, Florida, Alabama, Colorado, Connecticut, Guam, Hawaii, Iowa, Mariana Islands, Georgia, Maine, Massachusetts, Missouri, Oregon, Puerto Rico, Virgin Minnesota, , New Hampshire, Islands and Washington . , Rhode Island, South Dakota and Vermont . Oct. 1, 2015 Deadline to file Biennial Ownership Report for all noncommercial radio sta - Dec. 1, 2015 Deadline to file Biennial Ownership tions in Alaska, American Samoa, Florida, Report for all noncommercial radio sta - Guam, Hawaii, Mariana Islands, Oregon, tions in Alabama, Connecticut, Georgia, Puerto Rico, Virgin Islands and Maine, Massachusetts, New Hampshire Washington , and noncommercial televi - Rhode Island and Vermont , and non - sion stations in Iowa and Missouri . commercial television stations in Colorado, Minnesota, Montana, North Oct. 1, 2015 Deadline to file EEO Broadcast Mid- Dakota and South Dakota . term Report for all radio stations in Dec. 1, 2015 Deadline to file EEO Broadcast Mid-term employment units with more than 10 Report for all radio stations in employ - Florida, Puerto full-time employees in ment units with more than 10 full-time Rico Virgin Islands and . employees in Alabama and Georgia . Oct. 1, 2015 Deadline for all broadcast licensees and Dec. 2, 2015 Deadline for all commercial radio and permittees of stations in Alaska, television stations to file Biennial American Samoa, Florida, Guam, Ownership Report with data accurate of Hawaii, Iowa, Mariana Islands, as October 1. Missouri, Oregon, Puerto Rico, Virgin Islands and Washington to file annual Deadlines for Comments report on all adverse findings and final In FCC and Other Proceedings actions taken by any court or governmen - tal administrative agency involving mis - Reply conduct of the licensee, permittee, or any _D_o_c_k_e_t ______C_o_m__m__e_n_ts_____C_o_m__m__e_n_ts_ person or entity having an attributable (All proceedings are before the FCC unless otherwise noted.) interest in the station(s). Stations for which this is the license renewal applica - Docket 15-146; NPRM tion due date will submit this information White space devices in as a part of the renewal application. vacant UHF channels Oct. 30 Department of Justice Oct. 10, 2015 Place Issues/Programs List for previous Antitrust Division quarter in public inspection file for all Review of ASCAP and BMI full service radio and television stations consent decrees Nov. 20 N/A and Class A TV stations. Docket 02-278; Public Notice Oct. 13, 2015 Deadline to file quarterly Children’s Request for retroactive and Television Programming Reports for all and prospective waiver of commercial television stations. certain telemarketing rules for NAB members Oct. 26 Nov. 9 Docket 15-216; NPRM Good faith negotiations for Dec. 1 Dec. 31 retransmission consent agreements Docket 15-121; FNPRM Regulatory fees FR+30 FR+60 FR+N means the filing deadline is N days after publication of notice of the proceeding in the Federal Register.

4 DEADLINES TO WATCH

Cut-Off Date for AM and FM Paperwork Reduction Act Applications to Change Proceedings Community of License The FCC is required under the Paperwork Reduction Act to periodically collect public information on the paper - The FCC has accepted for filing the AM and FM appli - work burdens imposed by its record-keeping requirements cations identified below proposing to change each sta - in connection certain rules, policies, applications and tion’s community of license. These applications may also forms. Public comment has been invited about this aspect include proposals to modify technical facilities. The dead - of the following matters by the filing deadlines indicated. line for filing comments about any of the applications in the list below is October 9, 2015. Informal objections may Comment Topic Deadline be filed anytime prior to grant of the application . Topic Comment Deadline Public file and Present Proposed Community Community Station Channel Frequency EEO recordkeeping for satellite radio Oct. 19 Brantley, AL Goshen, AL WAOQ 262 100.3 Antenna Structure Registration, Form 854 Oct. 26 North Shore, CA Bermuda Dunes, CA KVGH 286 105.1 Emergency Alert System Nov. 2 Redlands, CA Grand Terrace, CA KCAL(AM) N/A 1410 San Andreas, CA Linden, CA KARQ 207 89.3 Cut-Off Dates for Low Power Sandpoint, ID Dear Park, WA KPND 237 95.3 Television Applications Clinton, MS Kearney Park, MS WHJT 228 93.5 Cloudcroft, NM Capitan, NM KNMB 244 96.7 The FCC has accepted for filing the following digital low Lawrenceburg, TN Pulaski, TN WKSR-FM 294 106.7 power television applications. The deadline for filing peti - Leakey, TX Concan, TX KHJQ 226 93.1 tions to deny any of these applications is October 21, 2015 . Wheeler, TX Carter, OK KOGC 202 88.3 Informal objections may be filed anytime prior to grant. Hoquiam, WA Raymond, WA KBSG 211 90.1 Grafton, WV Loch Lynn Hts, MD WDKL 240 95.9 Community Station Channel Applicant Evansville, IN New 49 EICB-TV East, LLC Cut-Off Dates for FM Des Moines, IA WBXF-CA 28 L4 Media Group, LLC Olive Hill, TN W30DF-D 33 Rural Life Foundation, Inc. Booster Applications Plainview, TX K44GL 31 Ramar Communications, Inc.

The FCC has accepted for filing the applications for new FM Requests for Exemption from booster stations as described below. The deadline for filing a petition to deny each of these applications is indicated. Informal Closed Captioning Rules objections may be filed any time prior to grant of the application . Parent Filing The following video programmers have requested exemption from the Community Station Channel MHz Deadline F CC’s closed captioning rules. Interested parties may file comments and/or Watsonville, CA KLOK 258 99.5 Oct. 14 oppositions by October 15, 2015, and replies by November 4, 2015, in Docket 06-181 about these requests . Pinellas Park, FL WSUN 246 97.1 Oct. 14 Programmer Location Case Identifier Boston, MA WXRV 223 92.5 Oct. 14 Dover, MA WXRV 223 92.5 Oct. 14 Tunuva Media/program-length , CA CGB-CC-1351 commercials Framingham, MA WXRV 223 92.5 Oct. 14 WACT-TV/various programs Norcross, GA CGB-CC-1360 Newton, MA WXRV 223 92.5 Oct. 14 Life Issues Institute/“Facing Cincinnati, OH CGB-CC-1363 Chadron, NE KVKR 208 88.7 Oct. 14 Life Head-on” Bryson City, NC WNCC 281 104.1 Oct. 14 Singing Crusade for Christ/Lloyd East Flat Rock, NC CGB-CC-1364 Bradford, PA WBYB 280 103.9 Oct. 14 Morgan Revivals Bradford, PA WXMT 292 106.3 Oct. 14 Orvil, TX KLIT 227 93.3 Oct. 22 Cut-Off Dates for Noncommercial FM Applications

Biennial Ownership Reports The FCC has accepted for filing the application for new non - commercial FM station as identified below. Petitions to deny For All Commercial Stations must be filed by the deadline shown. Informal objections may be Due December 2, 2015 filed anytime prior to grant of the application . Community Channel MHz Applicant Deadline Tok, AK 207 89.5 Athabascan Fiddlers Oct. 22 Association 5 Wireless Mics Set for TV Transition

Wireless microphones are currently permitted to operate on The Commission adopted an alternate calculation for the both a licensed and an unlicensed basis on frequencies throughout maximum power on VHF channels, changing from 50 mW limit the broadcast television band. The imminent restructuring of spec - in terms of conducted power to 50 mW in terms of EIRP. The trum presently allocated to television in the incentive auction will agency said this would improve efficiency without the need for have an impact the use of these devices. There will be less open larger antennas. spectrum on TV frequencies available for them to use. The FCC Under the new rules, licensed wireless mics will be permit - has amended its rules to address these issues in the Report and ted nearer to co-channel broadcast operations on any TV channel Order in Docket 14-166. Greater and more efficient use of wireless where the television signal falls below a threshold of -84 dBm mics will be permitted on VHF television channels. More co-chan - over the entire TV channel, provided certain conditions are met. nel operations will be allowed without the need for coordination. These operations will be restricted to indoor locations at a fixed Eligibility for use of the duplex gap (the band separating the position with a constant signal threshold and that is not being uplinks and downlinks in the post-auction wireless band plan for used for over-the-air television viewing. The licensed operator the 600 MHz band) will be expanded to include all entities now must use equipment and employ a person with professional eligible to hold licenses in the Low Power Auxiliary Service qualifications capable of determining the threshold broadcast (“LPAS”) for operations in television spectrum. Other spectrum signal at the location. bands not devoted to television are being opened to wireless microphone uses, as well, to meet the demand. In another rule change to promote more efficient use of spec - trum, the Commission adopted a more stringent standard for Wireless microphones are used in a great variety of settings, emission masks for wireless microphones. This will limit adja - including the production of broadcast and other video program - cent channel interference. Specifically, emissions must comply ming, film studios, theaters and music venues, conventions, with the masks specified by the European Telecommunications houses of worship, and other public performance situations. In Standards Institute in Section 8.3 of its publication for wireless addition to wireless microphones, the LPAS includes devices microphones. The standard can be retrieved at www.etsi.org. used for cue and control communications and synchronization of TV camera signals. LPAS licensees include broadcasters; televi - In the incentive auction proceeding, the Commission decid - sion, film and cable producers; operators of large venues and ed that broadcasters and cable programmers using licensed wire - professional sound companies. less mics could operate in a portion of the duplex gap where they would be protected from unlicensed users. In its search for Under the current rules, wireless microphones and other increased LPAS capacity, in this proceeding, the agency has LPAS devices are permitted on all TV channels 2 through 51 determined to allow all other LPAS users to operate on frequen - (except for 37) on a secondary, non-exclusive basis. Where possi - cies in the duplex gap as well. ble, the FCC currently designates the two channels nearest chan - nel 37 for wireless mics and prohibits other white space devices After the conclusion of the incentive auction, there will be a on those channels. LPAS devices are intended to transmit over 39-month transition period during which television stations on distances of approximately 100 meters. LPAS power levels on frequencies in repurposed spectrum will – for the most part – go VHF channels are limited to 50 mW, and to 250 mW on UHF silent or move to lower channels. In some cases, the new wireless channels. Unlicensed mics are limited to a maximum power of 50 services may also begin operations in the newly configured 600- mW throughout the television band. Licensed and unlicensed MHz band during this period. Wireless microphones operating mics may operate co-channel with broadcast television, but they on these frequencies will be permitted to continue to operate as must be at least four kilometers beyond the TV station’s protect - long as they do not cause interference to the new wireless users. ed contour. LPAS users can operate closer to co-channel broad - However, all wireless microphone operations in this band must cast stations if they coordinate with the broadcaster. cease at the end of the transition period. Rules Adopted for Modifying Satellite TV Markets continued from page 3 can feasibly provide spot beam service to only a portion of strate infeasibility. If the proposal turns out to be infeasible, the requested county, it must provide that partial service. the petitioner would save the resources otherwise devoted to The Commission acknowledges that there are additional a losing proposition. In such a case, the petitioner can initiate other conditions that might render service to a relevant com - a pre-filing coordination process with the satellite carrier. munity as technically and financially infeasible – such as the Upon receipt of the petitioner’s request, the satellite carrier need to reconfigure all of the customer receive antennas in a must raise whatever valid objection it has to the modification community. by supplying a spot beam infeasibility certification, or other The FCC recognizes that the proponent of a modification evidence as the case may require. The proponent then can seeking to add a community to a satellite market may wish evaluate whether to proceed with the petition process. to know in advance whether the satellite carrier can demon -

6 Incomplete License Applications, Temporary Facilities Nixed continued from page 1 The explanation for these failures in the initial applica - struction permit, (1) build the station in accordance with all tions was that time was “too short” to complete the neces - of the terms and conditions in the permit, and (2) file a sary tasks before expiration of the permits. The license appli - license application demonstrating proper construction. The cations were filed at the very end of the life of each permit in Commission said that permittees cannot file defective appli - early April, 2010, with commitments to comply with the spe - cations as mere placeholders. The parties in this case neither cial conditions promptly and requests for waivers of the completed construction, satisfied all of the conditions of the main studio rule. permit, nor established a basis for additional construction The Media Bureau returned each of these license appli - time. The Commission remonstrated that the applicants’ cations as defective and unacceptable and the main studio attempted use of the corrective amendment process to rule waiver requests were denied. The applicants filed extend their construction deadlines is inappropriate and Petitions for Reconsideration with an amendment to each inconsistent with the agency’s goals of prompt initiation of application, purporting to furnish the required technical service and spectrum efficiency. The Commission directed details and changing the response to the question on the the Bureau to reject any such attempts by other applicants in application form about construction of the main studio, cer - the future and to consistently enforce the rule on construc - tifying that they had constructed rule-compliant main stu - tion permit deadlines. dios prior to expiration of the permits. The Bureau reinstat - The Commission went on to describe and comment ed the applications for further review. about other aspects of the conduct of these applicants However, after conducting that further review, the (although they were not the basis for the agency’s decision in Bureau found that the amendments were this case). Enforcement Bureau staff investigated the status insufficient to show that the stations had of construction of these stations in been constructed in accordance with the October, 2010 and May, 2011. At a time permits. In particular, they did not when the applicants were not being include adequate RF information. The responsive to Media Bureau requests for license applications remained incom - ...permittees... operational measurements and photos, plete despite the filing of three more Enforcement Bureau staff photographs of inadequate amendments. In early may not rely on the antenna sites specified in the permits January, 2011, the Bureau set a deadline showed vacant fields with no evidence of of January 30, 2011 for providing the transmission or studio facilities. Field required information. On February 3, the temporarily agents monitored the stations’ author - applicants’ counsel requested an exten - ized frequencies and found no transmis - sion of time until the last week of constructed sions. A local business owner told the February. The Bureau did not act on that field agents that in August 2010, he had request and, in any event, no amend - facilities seen two men erect a small temporary ments were filed. On February 24, the tower at a location that the agents deter - Bureau dismissed the applications for mined was near the authorized transmit - failure to prosecute and ruled that the ter site for KKUL-FM. The men told him permits had expired by operation of law in April, 2010. In that they were setting up a temporary station to operate on March, 2011, the applicants filed Petitions for 98.1 MHz (the authorized frequency for KKUL-FM). He lis - Reconsideration of the dismissals, and offered amendments tened to the station on that frequency for about three hours purporting to cure the deficiencies in the applications. The until the men dismantled the equipment and left the scene. Bureau denied the Petitions and declined to consider the At no time had the KKUL-FM permittee sought authoriza - amendments because the applicants had failed to submit the tion for a temporary facility. often-requested information during the eleven months The Commission took this opportunity to caution all between the filing of the license applications and their ulti - permittees that they may not rely on temporarily construct - mate dismissals. ed facilities to satisfy construction requirements and that In December, 2012, the applicants filed Applications for permits associated with temporarily constructed facilities are Review of the Bureau’s rejection of their reconsideration subject to automatic forfeiture. The agency further cautioned requests. This present order is the Commission’s response to that false certification of construction, or failure to update those Applications for Review. In upholding the Bureau’s license applications to report the removal of temporary facil - ruling, the Commission explained that all broadcast permit - ities will be grounds for enforcement action. tees must, by the construction deadline specified in the con -

7 DOJ Studies ASCAP, BMI Licenses in Partially Owned Works

The Antirust Division of the U.S. Department of Justice in each organization’s respective repertoire, whether whol - is continuing its review of the long-standing Consent ly or partially owned? Decrees under which the major Performing Rights • If the blanket licenses have not provided users with the Organizations (“”PROs”) in the United States – ASCAP and right to perform all of the works in the repertoire, what BMI – have been operating for many decades. These organ - have they provided? izations collect copyright royalties from radio stations and other public performers of music on behalf of copyright • Have there been occasions on which a user who entered owners. The DOJ is studying whether the Consent Decrees into a license agreement with one PRO became subject to an remain viable, useful or even necessary in connection with infringement complaint from a third party for works monitoring and preventing antitrust violations. included in the license? In comments submitted in response to prior solicita - • Assuming the Consent Decrees currently require the PROs tions for public input, it came to light that the general prac - to offer full-work licenses, should the Decrees be modified to tice for both ASCAP and BMI is to license all of the works permit or require them to offer licenses that require users to in their repertoires, including those in which they may hold obtain consent from all joint owners of a work? only a partial ownership. Indeed, under the Consent • If the PROs were to offer licenses that do not entitle users Decrees, both organizations are obligated to license their to perform partially owned works, how would the public entire repertoires to any music user. Notwithstanding this, interest be served by modifying the Consent Decrees to per - it appears that the historical practice of both organizations mit the PROs to accept partial rights from music publishers has been to charge and accept payments for fractional inter - under which the PROs can license partial rights to users? ests, and to forward the collected royalties to their members for such fractional interests. These practices have led some • What, if any, rationale is there for the PROs to engage in to question whether the organizations’ licenses have in fact joint price setting if their licensees do not provide immedi - conveyed the right to perform partially owned works. ate access to all of the works in their repertoires? In view of this potential confusion, the Antitrust Comments must be submitted by November 20, and Division has asked for public comment on the following: may be filed electronically at www.justice.gov/atr/ASCAP-BMI-comments-2015. • Have the licenses that ASCAP and BMI have historically sold to users provided the right to perform all of the works

NAB Seeks Waiver of Autodialer Rule continued from page 2 the petitioners and their members a retroactive waiver from prior express written disclosure was required for certain the original effective date of the rule, October 16, 2013, to mobile telemarketing messages (including automated text the release date of the waiver order, and then a waiver from messages to mobile numbers) caused confusion for peti - the release date through a period of 89 days, during which tioners. NAB asks the Commission to declare that all parties the affected parties were allowed to rely on the “old” prior to the proceeding are entitled to retrospective and prospec - written express consents already provided by their con - tive waivers like those granted in the waiver order. In the sumers before October 16, 2013. alternative, NAB requests that the Commission waive the In its petition, NAB seeks to be included in the “class of rule retroactively and temporarily prospectively for the entities eligible for the retroactive and prospective waivers NAB and its members as the agency did for other parties in pertaining to the prior express consent requirement” in the the waiver order. Commission’s waiver order. In requesting to be included in The Commission has invited public comment on the the class of petitioners who were previously granted waiv - petition. Comments should be submitted by October 26. er relief, NAB states that the FCC recognized in its waiver Reply comments will be due by November 9. order that certain language requiring that an additional

The Pillsbury Law ANTENNA is an information service about current events in communications law published by Atlantic Star Media, Inc. This publication is produced only to report on current events and factual matters in the field of communications law. Publication and dis semination of this material is not intended to constitute the practice of law or the rendering of legal advice. No attorney-client relationship shall be deemed to exist between the provider and the reader or between the publisher and the reader as a result of the publication, dissemination, distribution or other use of this material. The publisher makes its best effort to ensure that the information report - ed is cor rect, but no warranty, express or implied, is given as to the accuracy or completeness of any information or statement published herein. Copyright 2015 by Atlantic Star Media, Inc. All rights reserved.

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